Delhi High Court

Shri Umesh Mediratta & Anr vs State Bank Of Indore on 23 October, 2008

Author: Rajiv Sahai Endlaw

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CS(OS) 1222/2002



%                                Date of decision: 23.10.2008



SHRI UMESH MEDIRATTA & ANR                           ....... Plaintiffs
                          Through: Mr. Rajiv Bansal with Mr Rajan
                                   Tyagi, Advocates.

                               Versus

STATE BANK OF INDORE                                 ......Defendant
                          Through:   Mr Jai Mohan, Advocate.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?                Yes

2.    To be referred to the reporter or not?         Yes

3.    Whether the judgment should be reported        Yes
      in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The defendant was a tenant under the plaintiffs with respect

to the portion of the basement and the portion of the ground floor of

property No. L-7, Green Park Extension Market, New Delhi. The

plaintiff No.1 and the plaintiff No.2 claim to be entitled to separate

portions of the basement and the ground floor let out to the

defendant, hence four separate registered lease deeds, all identical

in terms, were executed i.e., two of the plaintiff No.1 with the

defendant with respect to his share of the basement and the ground

floor and two of the plaintiff No.2 with the defendant of her share of

the basement and the ground floor. The plaintiffs instituted the suit

for recovery of Rs 31,07,875/- on the ground:-

(a) that the leases after the expiry of period of three years

were renewable for further two periods of three years each

at an increased rent of 25% on the last paid rent;

(b) that the total rent payable by the defendant to the plaintiffs

for the first term of 25th June, 1998 to 24th June, 2001 was

to be Rs 2,75,000/- per month and for the second term of

three years from 25th June, 2001 to 24th June, 2004 was to

be total of Rs 3,43,750/- per month;

vacate the premises at any time within the "lease period of

9 years" by giving not less than six months notice in

writing by registered post to that effect to the plaintiffs;

(d) that the defendant, at the time of vacation of the premises,

was liable to hand over the same in the same condition as

at the time of inception of the tenancy natural wear and

tear excepted;

(e) that the defendant vide letters dated 30th April, 2001

received by the plaintiffs on 8th May, 2001 intimated to the

plaintiffs its intent to vacate the premises on the expiry of

the first term of three years on 25th June, 2001 but sought

to retain the premises for one or two months thereafter to

complete the process of shifting. That the said notice was

not a notice of six months as contemplated under the lease

deeds;

(f) that the defendant thereafter for the months of June and

July, 2001 continued to pay the rent at the same rate as

payable for the first three years notwithstanding the term

in the lease deeds of increase in the rent by 25% w.e.f. 25th

June, 2001 and in spite of demand being made in that

regard;

(g) that the defendant vacated the premises on 24th August,

2001, even though the premises on that date were not in

the condition in which the defendant was liable to deliver

in terms of the lease deeds and even though there was

extensive damage to the premises and the fixtures and

fittings provided therein; the plaintiff without prejudice to

their rights and contentions took possession of the same

and the defendant on its part undertook to settle the

account and carry out the repairs and remove the damages

to the premises. The defendant, however, failed to do so in

spite of repeated requests and reminders of the plaintiff;

(h) that the defendant ultimately carried out some repairs to

the premises in the month of January and February 2002.

The plaintiff thus claimed in the suit for recovery of

Rs 1,37,500/- towards shortfall in rent by 25% paid for the months of June and July, 2001

Rs 3,43,750/- towards rent for the month of August, 2001

Rs.24,06,250/- towards the rent for the months of September, 2001 to February, 2002 in lieu of six months notice period and also for not restoring the premises to its original condition as agreed

Rs. 46,735/- towards costs of rectification of air conditioning equipment

Total Rs 29,34,235/-

` Rs. 1,73,640/- towards interest at 18% on the aforesaid amounts from 24th January, 2002 to 24th May, 2002.

Total 31,07,875/-

2. The defendant contested the suit pleading, inter alia,:

i. that the lease was for a term of three years only and stamp duty had also been paid on the lease deed for a terms of three years and not for a term of nine years;

ii. that the defendant having notified the plaintiff of intent to vacate the premises on the expiry of the first term of three years, was not liable to give any six months notice and thus the plaintiffs were not entitled to rent for six months;

iii. that the possession of the premises was delivered in terms of the lease deed and repairs were carried out in the month of January 2002 only out of goodwill and without prejudice to the plea that the defendant was not liable to carry out any repairs and it was only in the month of January 2002 that the premises were so made available for repairs to the defendant.

iv. The liability for rectification charges for the air conditioning

was denied. It was denied that the defendant for the months

of June and July, 2001 was liable to pay rent at the enhanced

rent - it was stated that since the lease was not renewed for a

further term of three years, the defendant did not become

liable to increase the rent by 25% and had already paid the

rent at the last paid rate for the months of June and July,

2001.

v. There was no defence to the claim of rent for the 24 days of

August, 2001. It is presumed that the defendant was ready to

pay the same at the rate at which the rent was last paid.

3. In the aforesaid state of pleadings, the following issues were

struck on 11th April, 2005:

1. Whether the Defendant was obliged to give to the Plaintiffs six months' clear notice to vacate in terms of

Clause D.2 of the registered lease deed dated 13th October, 1998 in respect of the suit premises ? OPP

2. If the answer to issues No.1 is in the affirmative, then, whether any such notice was served on the plaintiffs by the defendant ? OPD

3. Whether the defendant paid the full rent for the months of June and July, 2001 as per the agreement between the parties ? OPD

4. Whether the defendant is liable to pay to the Plaintiffs an amount of Rs.1,37,500/- (Rupees One Lac Thirty Seven Thousand Five Hundred Only) being the difference in the amount payable by the Defendant towards rent for the months of June and July, 2001 and the actual amount paid by it ? OPP

5. Whether the defendant is liable to pay to the plaintiffs an amount of Rs.3,43,750/- towards agreeable rent for the month of August, 2001 in respect of the said premises ? OPP

6. Whether on or before handing over possession of the suit premises to the plaintiffs, the defendant restored the suit premises to its original condition (normal wear and tear excepted) existing at the time when the suit premises was leased out ? OPD

7. Whether the plaintiffs were deprived of the beneficial use and enjoyment of the suit premises on account of failure of the defendant to restore the suit premises to its original condition (normal wear and tear excepted) existing at the time when the suit premises was leased out ? If yes, then for what period ? OPP

8. Whether the Defendant is liable to pay to the plaintiffs an amount of Rs.24,06,250/- towards rent for the period September, 2001 to February, 2002 in lieu of notice and/or for depriving the plaintiffs of the beneficial use and enjoyment of the suit premises during the said period? OPP

9. Whether the defendant is liable to pay to the plaintiffs an amount of Rs 46,735/- or any other amount towards cost of rectification of air conditioning equipment ? OPP

10. Whether the plaintiff is entitled to any interest ? If yes, then on what amount? For what period? and at what rate? OPP

11. Relief.

4. The evidence was ordered to be recorded before the Local

Commissioner. One witness each was examined by the plaintiffs and

the defendant. After the conclusion of the evidence, on 21st January,

2008, the defendant was proceeded ex parte and the matter was

posted for final disposal but on the date fixed for disposal, the

counsel for the defendant appeared and has made his submissions.

My issue-wise findings are as under.

Re: Issue No. 1(Whether the Defendant was obliged to give to the Plaintiffs six months' clear notice to vacate in terms of Clause D.2 of the registered lease deed dated 13th October, 1998 in respect of the suit premises ? OPP)

Re: Issue No. 2 (If the answer to issues No.1 is in the affirmative, then, whether any such notice was served on the plaintiffs by the defendant? OPD)

5. The agreement between the parties is contained in registered

document and which has to be considered as the sole repository of

the terms and conditions settled between the parties and there is no

need to look at any oral evidence. Though there are four registered

lease deeds proved as Exhibits P1 to P4 but not only are the terms

identical but each lease deed also contains a clause that the

agreement with respect to all the four premises subject matter of the

four lease deeds shall be co existent and co terminus and the

defendant had undertaken to retain all the spaces together and to

exercise the rights of extension of the lease deed of all the four

premises together and the plaintiffs on their part had agreed to

abide by the same rules and to act in matters touching the interest of

the defendant as in the lease deeds with respect to the other

premises.

6. The relevant parts of the lease deeds for the purposes of the

present issues are as under:

"And whereas the lessor has agreed to lease and the lessee has agreed to take on lease.......... for a initial

period of three years commencing from 25th June, 1998 on the terms and conditions contained herein."

"A.3. After the expiry of this Lease period of 3 (three) years the lease will be renewable for two further periods of three years each at an increased rent of 25% (Twenty Five percent) on the last rent paid subject to maximum of 9 (Nine) years from the day and date first above written, after which the Lease shall come to an end and the Lessee shall have to unconditionally vacate the premises.

A.4 As first above written the Lease is renewable after 3 (Three) years for two further period of three (3) years each at an increased rent of 25% (Twenty Five percent) on the last rent paid i.e., from 25th June, 1998 to 24th June, 2001 the rent will be Rs. 47,500/- per month, from 25th June, 2001 to 24th June, 2004, the rent shall be Rs. 59,375/- per month, and from 25th June, 2004 to 24th June 2007 the rent shall be Rs. 74,218.75 per month. The Lease shall come to an end on or before 24th June, 2007 and the LESSEE shall thus vacate the premises and hand over, the actual physical and peaceful vacant possession of the Premises to the LESSORS, failing which the LESSORS will be entitled to charge damages for use and occupation.

A.5 A fresh Lease deed shall be executed and registered at every renewal of three (3) years each subject to total lease period of 9(Nine) years.

D.2 The Lessee shall be entitled to vacate the said premises at any time within the Lease period of nine years giving not less than six month's notice in writing by registered post to that effect to the Lessor at time of vacation in the condition taken over except for normal wear and tear and FORCE MAJURE and shall settle all accounts on that date. D.6 Stamp duty and registration charges in respect of this Lease Deed shall be borne by the Lessor and the Lessee in equal proportions."

7. As contended by the defendant, stamp duty on the lease deed

was paid as on a lease deed for three years and not as on a lease

deed for nine years. The contention of the counsel for the plaintiffs

is that the lease, in fact, was for a term of nine years and thus could

be terminated within the said terms of nine years, only by a six

months' notice as provided in clause D.2. Per contra, the counsel for

the defendant contends that there was no need for a notice if the

defendant was to vacate the premises on expiry of the first term of

three years as has been done.

8. On a perusal of the terms of the lease deed set out

hereinabove, the contention of the counsel for the plaintiffs that the

same was for a term of nine years cannot be accepted. Merely

because the parties in one of the clauses in the lease deed, provide

as in clause D.2, cannot make an instrument which otherwise is in

the concerned clauses thereof stated to be for a term of three years

and is valued for the purposes of stamp duty as such, an instrument

for a longer term requiring substantially more stamp duty.

Moreover, if the said contention is to be accepted, the same would

render otiose the clauses of the lease deed relating to renewal

thereof and of execution of a fresh lease deed at the time of each

renewal. A document between the parties has to be read as a whole

so as to render meaningful, each and every clause thereof and on

such reading of the document in the present case, I hold the same to

be creating a lease for a term of three years only.

9. The next question which arises is as to whether the defendant

was required to give a notice of six months if not intending to renew

the lease on the expiry of the first term of three years or on the

second term of three years. Again, in my opinion, a reading of the

document does not permit such an interpretation. Under Section

111 of the Transfer of Property Act, a lease of immovable property

determines, inter alia, by efflux of time limited thereby and can also

be determined by express surrender, i.e., to say, in case the lessee

yields up his interest under the lease to the lessor by mutual

agreement between them and also on the expiration of a notice to

determine the lease or to quit or of intention to quit the property

leased, duly given by one party to the other.

10. If a lease of immovable property determines by efflux of time

limited thereby, the lease in the present case found above to be for

an initial period of three years only would determine on the expiry of

the said term of three years. The agreement contained in clauses

A.3 and A.4 was only an agreement for renewal of the lease. Clause

D2 on which reliance is placed by the plaintiffs has to be necessarily

read as meaning that since the unilateral option had been given to

the defendant to renew the lease after its term of three years, for

two successive terms of three years each, that if the lease was so

renewed, and if during any term of three years, the defendant

intended to vacate the premises, the defendant was required to give

a six months' notice. If the parties had intended that the defendant

was required to give such a notice even if not intending to renew the

lease, the parties would have provided so. In the absence of such a

stipulation, I hold that the defendant if not intending to renew the

lease on the expiry of the term of three years, the defendant was not

required to give any such notice of six months.

11. The lease is thus found to be of three years only and the

defendant was not required to give six months notice if not intending

to renew the lease. The issues No. 1 and 2 are thus decided against

the plaintiff and in favour of the defendant.

Re: Issues No. 3 (Whether the defendant paid the full rent for the months of June and July, 2001 as per the agreement between the parties ? OPD)

Re: Issue No. 4(Whether the defendant is liable to pay to the Plaintiffs an amount of Rs.1,37,500/- (Rupees One Lac Thirty Seven Thousand Five Hundred Only) being the difference in the amount payable by the Defendant towards rent for the months of June and July, 2001 and the actual amount paid by it ? OPP)

12. The initial term of three years of the lease deed was to expire

on 25th June, 2001. The defendant vide letters dated 30th April, 2001

Exhibits P5 and P6 to the plaintiffs informed the plaintiffs that the

lease deed was expiring on 25th June, 2001, that the defendant had

started preparation to vacate the premises by the said date, it may

be necessary to retain the premises for a period of one or two

months thereafter to complete the process of shifting of the said

bank.

13. I have under issues 1 and 2 found the lease to have determined

by efflux of time on expiry of the term thereof and the defendant

being not required to give six months' notice of termination. The

defendant also made the said intention clear by the letters dated 30th

April, 2001. The tenancy of the defendant therefore came to an end

on 25th June, 2001. The use and occupation of the defendant of the

premises thereafter was unauthorised. The defendant w.e.f. 26th

June, 2001 and till the date of vacation of the premises became liable

to pay mesne profits/damages for use and occupation to the plaintiff.

The question is what should be the rate of the said mesne

profits/damages for use and occupation. Whether it should be the

same rate at which the defendant was last paying the rent or it

should be at the rate at which the defendant had agreed to pay the

rent w.e.f. 26th June, 2001 and for a term of three years thereafter.

14. The Division bench of this court in National Radio and

Electronic Co. Ltd v Motion Picture Association 122(2005) DLT

629 after analysing various judgments of the Apex Court and of this

court held that the courts can take judicial notice of the general

increase in rent especially of commercial properties, though not of

the rate of such increase which has to be proved by leading cogent

evidence before the court. In the present case, the parties had

agreed to what would be the letting value of the premises w.e.f. 26th

June, 2001. There is no pleading or the evidence of the defendant to

the effect that the rates of rent in the locality had fallen from that

which the defendant had agreed to pay to the plaintiff. In the

absence of any such pleading or evidence, in my opinion, there can

be no better proof of the rate of mesne profits coupled with the

judicial notice which is taken of the general increase in rent of

commercial properties, than the rate at which the defendant itself

had agreed to pay rent to the plaintiff. I thus find the defendant

liable to pay mesne profits .w.e.f. 26th June, 2001 to the plaintiffs at

the rate at which the defendant had agreed to pay rent w.e.f. the

said period to the plaintiff i.e. at the total rate of Rs 3,43,750/- per

month under all the four lease deeds. There is no dispute about the

liability of the defendant for payment for the months of June and

July, 2001. The defendant having paid at the old rate only is liable to

pay the additional amount of Rs 1,37,500/- as claimed by the

plaintiffs i.e., at a rate increased by 25% over the last paid rent.

15. No payment whatsoever has been made by the defendant to

the plaintiffs for the month of August, 2001. It is the admitted

position that actual physical vacant possession was delivered by the

defendant to the plaintiffs on 24th August, 2001. It appears that the

payments were being made from 25th day of the month to the 24th

day of the succeeding month. The defendant is liable to pay to the

plaintiffs at the rate of Rs 3,43,500/- per month from 25th June, 2001

to 24th August, 2001. I thus decide the issues No. 4 and 5 in favour

of the plaintiffs and against the defendant and hold the defendant

liable to pay Rs. 1,37,500/- to the plaintiffs towards the dues for the

months of June and July, 2001 and Rs. 3,43,750/- for the month of

August, 2001. The said payments are, however, found to be towards

mesne profits and not towards rent.

Re: Issues 6 (Whether on or before handing over possession of the suit premises to the plaintiffs, the defendant restored the suit premises to its original condition (normal wear and tear excepted) existing at the time when the suit premises was leased out ? OPD)

Re: Issue 7 (Whether the plaintiffs were deprived of the beneficial use and enjoyment of the suit premises on account of failure of the defendant to restore the suit premises to its original condition (normal wear and tear excepted) existing at the time when the suit premises was leased out ? If yes, then for what period ? OPP)

Re: Issue 8 (Whether the Defendant is liable to pay to the plaintiffs an amount of Rs.24,06,250/- towards rent for the period September, 2001 to February, 2002 in lieu of notice and/or for depriving the plaintiffs of the beneficial use and enjoyment of the suit premises during the said period? OPP)

16. The clauses of the lease deed relevant for adjudication of the

said issues are as under:

"A.6. That the Lessee at the time of taking over the possession of the said premises has checked and confirmed that all the fittings and fixtures etc. installed in the premises are in perfect working condition and nothing is broken or missing as per list enclosed (Annexure 1).

B.1. The LESSEE may erect temporary partitions, false ceilings, structures, installations etc. and interiors and other works at their own cost in the said premises without however, making any permanent structural changes/additions/alterations therein, without the written consent of the LESSOR.

B.2. The LESSEE shall maintain all sanitary fittings, water connections and electric installations and other fixtures in proper working condition (fair wear and tear and damage by fire, Act of God, earthquake, air raids, mob violence, riots, other civil commotion, act of terrorism, enemy action or other causes not within the control of the LESSEE, (hereinafter called `FORCE MAJURE' being excepted) provided that the LESSEE shall not be responsible for any structural damage which may occur to the demised premises during the term hereby created or any renewal thereof. Minor day to day repairs/replacements shall be carried out by the LESSEE at their own expenses.

B6. That the Lessee has assured to the Lessor that it will keep the interior of the demised premises in good repair, order and condition. However, sanitation/cleanliness of common areas and amenities (if any) shall be the responsibility of the Lessor.

C.5. That the Lessor will construct a RCC wall and roof in the premises covering a total area of about 250- 300 sq ft as per Reserve Bank of India, specifications for the purposes of use as strong room by the Lessee. The Lessor will only construct the RCC structure, whereas the Lessee will install the strong room gate or any other things required for the purposes at its own cost and expenses. That it is understood by and between the Lessors and the Lessee that the Lessee shall start the erection and construction of this RCC construction after the execution of this lease deed and shall complete the same within 15 days of the said execution.

D.2 The Lessee shall be entitled to vacate the said premises at any time within the Lease period of nine years giving not less than six month's notice in writing by registered post to that effect to the Lessor at time of vacation in the condition taken over except for normal wear and tear and FORCE MAJURE and shall settle all accounts on that date. Provided always that all installations or other works, fittings and fixtures put up by the Lessee in the demised premises shall remain the property of the Lessee who shall be at liberty to remove and appropriate to themselves and/or all of them at the expiration of the terms and hand over the premises in the original shape."

17. In the possession letter executed on 24th August, 2001 and

proved as Exhibit P-8, the defendant Bank while delivering the

possession stated as under:

"............ The bank is ready to repair such wear and tear and undertakes to repair the same as and when, the bank shall be allowed to do so."

In the same document, the plaintiffs, while taking over the

possession stated as under:

"................. We ................ have received and taken over today i.e., 24.08.2001, the vacant, peaceful, actual and physical possession of the erstwhile demised premises.............except repairs to the normal wear and tear, due to removing the strong room/gate....................."

18. The aforesaid is contained in the typed portion of the

possession letter. The plaintiffs while taking possession also in hand

wrote of their claims for damages against the bank with respect to

repairs to be done by the bank.

19. On the same date, i.e., 24th August, 2001, "Damages report of

repairs/replacement needed to be carried out by the Bank" was also

signed by the plaintiffs and the defendant and which has been

proved as exhibit P-15 and Exhibit P-16 and which shows the nature

of the damages as damage to the flooring, ceiling, plastering, walls

and staircase.

20. The plaintiffs also sent a letter dated 25th September, 2001 to

the defendant which has been proved as Exhibit P-17 in which also it

is stated that the premises were badly damaged and on joint

inspection common report of damages was prepared on 24th August,

2001 and the officials of the defendant had assured that the bank

would carry out the repairs within a months time. The plaintiffs

intimated by the said letter that they had been keeping their

premises available for repairs but the defendant had failed to carry

out the repairs. The plaintiffs by the said letter also notified the

defendant that notwithstanding the defendant having vacated the

premises, unless the defendant restored the premises, the defendant

shall be liable to pay rent at the enhanced rates.

21. There is no correspondence thereafter between the parties till

a notice dated 23rd January, 2002 got served by the plaintiffs on the

defendant wherein the plaintiffs, inter alia, called upon the

defendant to carry out the repairs failing which the plaintiffs shall

get the repair done at the costs of the defendant and estimate

whereof was enclosed to the said letter. The said notice has been

proved as Exhibit P-18. A reply dated 5th March, 2002 proved as

Exhibit DW1/6 was got sent by the defendant thereto in which the

defendant denied any damage and claimed the same to be due to

normal wear and tear and for which the defendant was not liable.

The advocate for the defendant in the said reply also stated that

though not liable, the said damages had already been got repaired by

the defendant under the plaintiffs' supervision and to the entire

satisfaction of the plaintiffs.

22. On a bare reading of the terms and conditions of the lease

deed, there can be no doubt that the defendant had agreed to restore

the premises to their original conditions, normal wear and tear

excepted before delivering possession thereof to the plaintiffs on the

expiry of the term of the lease.

23. This position could not and has not been denied by the

defendant. The contention of the defendant is that the damage

alleged by the plaintiffs was owing to normal wear and tear and not

which the defendant was liable to undo.

24. However, the said stand was taken by the defendant for the

first time in March, 2002 after the defendant, in pursuance to the

legal notice of January, 2002 of the plaintiffs, carried out the work of

repairs and which in the reply of March, 2002 was stated to have

been got done without prejudice to the contention that the defendant

was not liable. In the written statement the said stand was further

bettered by adding that the repairs were carried out of goodwill. I

am not inclined to believe the said stand of the defendant. It is

significant that the possession letter presumably got typed by the

defendant bank itself, also in typed letters contained the term of the

defendant to repair the damage as and when allowed by the

plaintiffs. The hand written portion of the plaintiffs on the

possession letter also contained reference to the damages and the

report prepared on the same day mentions the particulars of the

damage. It appears that the plaintiffs were not willing to take

physical possession of the premises also without such a damage

report being prepared and signed by the parties. It is not the case of

the defendant that its officials were forced to sign the said damage

report. It is not stated on the said damage report that the damage

was because of normal wear and tear. If the damage was because of

normal wear and tear, there would have been no liability of the

defendant to repair the same. Further, it is the plaintiffs who

immediately after taking possession vide letter dated 25th

September, 2001 reminded the defendant to carry out the repairs

which it had promised to carry out. The defendant has not filed a

single letter which may have been sent to the plaintiffs stating that

the defendant was not liable for any repairs or that the plaintiffs had

not made the premises available for the repair.

25. The defendant appears to have been spurred into action only

after receipt of the notice of January 2002 from the plaintiffs. The

defendant thereafter carried out the work of repairs and whereafter

only the advocate for the defendant sent the reply recording the

factum of the repairs having been carried out to the satisfaction of

the plaintiffs. However, the matter by then being in the hand of the

advocate, the advocate, for the first time, also stated that the

defendant was not bound to carry out the repairs.

26. The defendant is a bank being a subsidiary of a nationalized

bank and it is not understandable as to how monies on repair of

premises could be spent without the defendant being not liable

under its contract to carry out the said repairs. No official of the

defendant is empowered to incur such expenses out of goodwill.

Most important, no such plea was taken at any time by the officials

of the defendant from 24th August, 2001 till carrying out of the said

repairs. I have but no option to discard the said plea of the

defendant being not liable for repairs and the same having been

carried out of goodwill.

27. Having held that the defendant was liable under the lease deed

to carry out repairs of damages to the premises and that there was

damage to the premises and which was finally repaired after the

notice of January, 2002 and before the reply of 8th Mach, 2002, the

next question is what is the effect thereof? Even though I have

under Issues 1 and 2 held that the defendant was not liable for a six

months notice but on a reading of the lease deed, it is clear that the

defendant could legally vacate the premises only after complying

with its obligations to be complied before vacation i.e., of repairs.

The defendant having not complied with the said obligation would be

liable for breach thereof. A new tenant would not take on rent /

occupy a damaged premises. The result of the breach/delay by the

defendant to repair the premises is that the plaintiff could not use/re-

let the same. Axiomatically the plaintiff would be entitled to mesne

profits/damages for use and occupation till such repairs are carried

out. The rate of mesne profits in relation to the months of June, July

and August has already, under issues 3, 4 and 5, been held to be at

the rate agreed to be paid by the defendant.

28. The next question is whether the delay by the defendant

carrying out the repairs is attributable to the plaintiffs. Again, there

is no evidence to the said effect. It is an old adage that witnesses

may lie but documents not. The documents in the present case show

a promise by the defendant in August, 2001 to carry out the repairs,

a reminder by the plaintiffs in September, 2001 that the defendant in

spite of its promise has not carried out the repairs, the complete

silence of the defendant thereafter, the legal notice of January, 2002

of the plaintiffs to the defendant enclosing the estimate of costs of

repairs to the premises and the admission by the defendant in the

reply of 5th March, 2002 of having carried out the said repairs. In

the face of the said documents, no credence can be given to the

stand of the defendant that the plaintiffs made the premises

available in January, 2002 only for the repairs. The parties are at

variance also as to whether the repairs were carried out in January,

2002 itself or continued till February, 2002. The repairs, as

aforesaid, were carried out after service of the legal notice dated

23rd January, 2002 by the plaintiffs. The notice dated 23rd January,

2002 could not have been served on the defendant before 25 th

January, 2002. It is unlikely that the repairs would thereafter be

carried out within the month of January, 2002. Moreover, had the

repairs been carried out so quickly within January, 2002, the reply to

the legal notice would have been got issued immediately thereafter.

However, the reply is dated 5th March, 2002. The same lends me to

believe that the reply was got issued only after the work of carrying

out the repairs was concluded to the satisfaction of the plaintiffs as

stated in the said reply also.

29. I would, therefore, find the plaintiffs entitled to mesne

profits/damages of use and occupation from 26th August, 2001 to 25th

February, 2002 @ Rs 3,43,750/-per month i.e., for six months of Rs

20,62,500/-. The plaintiff has in plaint erroneously claimed Rs

24,06,250/- for six months.

The Issues 6, 7 and 8 are thus decided as above in favour of

the plaintiffs and against the defendant.

Re: Issue No.9 (Whether the defendant is liable to pay to the plaintiffs an amount of Rs 46,735/- or any other amount towards cost of rectification of air conditioning equipment ? OPP

30. The plaintiffs have not led any documentary evidence of having

spent Rs 46,735/- in rectification of air conditioning equipment. In

the absence of any documentary evidence, I am not inclined to

believe the oral testimony of the witness of the plaintiff to the said

effect especially in view of the defendant in the reply dated 5th

March, 2002 having stated that all works have been carried out to

the satisfaction of the plaintiff.

The issue No.9 is thus decided in favour of the defendant and

against the plaintiffs.

Re: Issue No.10 (Whether the plaintiff is entitled to any interest ? If yes, then on what amount? For what period? and at what rate? OPP

31. The defendant's having withheld the dues of the plaintiffs

ought to compensate the plaintiff for the delay, by payment of